EEOC Issues Guidance on COVID-19 Vaccination Policies

By: Sheila Gladstone, Sarah Glaser, and Emily Linn
Lloyd Gosselink Rochelle & Townsend P.C.’s Employment Law Practice Group

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance to employers on COVID-19 vaccination programs. The EEOC’s guidance was particularly interesting because (although it does not explicitly say it), it assumes that a mandate requiring employees to be vaccinated against COVID-19 is lawful. Consequently, employers should start considering whether to implement a vaccine mandate for all or a portion of their workforce once COVID-19 vaccines are widely available.

There are business-related reasons for requiring a COVID-19 vaccine. The many benefits of an inoculated workforce include fewer employee absences and fewer pandemic related closures and interruptions to offices and other facilities. Vaccinated employees will be able to safely travel and interact face to face with the public with less fear of becoming ill, which is beneficial to all involved. Not to mention the contribution to the overall public health of the business’s community and the world.

The benefits are tempered by the somewhat wide-spread hesitation to receive the vaccine; some sources suggest that as many as 30% of the U.S. population will refuse vaccination. Therefore, employers should anticipate that portions of their workforce will be resistant to a vaccine mandate. Prior to implementing such a mandate, employers must consider the possibility that a significant portion of their workforce may refuse the vaccine (including, perhaps, some of their most valuable employees!) and be prepared with a uniform response. Employers may also consider whether encouraging, incentivizing, or recommending (rather than mandating) employees to be vaccinated is a feasible alternative.

Reasonable Accommodation
The EEOC’s recent guidance indicates that vaccination requirements implicate a number of federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). Employers who mandate vaccination may be obligated to provide exemptions or accommodations to employees with disabilities, religious objections, or those who are pregnant. Governmental employers may also need to consider religious freedom clauses in the US Constitution and the Religious Freedom Restoration Act (RFRA).

If an employee indicates they are unable to obtain a vaccination due to a disability, pregnancy, or sincerely held religious belief, before excluding the employee from the workplace, an employer must undergo an analysis to determine whether an unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC outlines a four-step individualized analysis in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.

A conclusion that there is a direct threat would necessarily include a determination that an unvaccinated individual will expose others to the virus at the worksite. If the employer determines that an individual who cannot or will not be vaccinated due to disability, pregnancy, or sincerely held religious belief poses a direct threat to the workplace, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no reasonable way to provide an accommodation that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat. A reasonable accommodation could include (depending on each employer’s particular circumstances and the duties of the position) allowing telework, providing the employee a workspace that is separate from others, use of personal protective equipment, or other solutions.

Confidentiality Requirements
Employers should remember that the ADA also contains certain confidentiality requirements. It is a violation of the ADA to disclose that an employee is receiving a reasonable accommodation, which means employers cannot tell other employees about any accommodation provided to an employee related to vaccinations without the employee’s agreement. Additionally, any medical information obtained during the course of the interactive process or in conjunction with the administration of a vaccines must be kept confidential.

Administering the Vaccine
Employers may require proof of vaccination or may administer the vaccines to their workforce. From a practical standpoint, the former is far simpler. An employer who sets up a clinic or otherwise arranges for the administration of the vaccine to its workforce should know that the EEOC takes the position that the screening questions a health provider must ask before administering a vaccine are considered a medical inquiry covered by the ADA. This means that the questions are prohibited unless they are job-related and consistent with business necessity. To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination will pose a direct threat to the health or safety of her or himself or others. Depending on the type and characteristic of a workforce, it is possible that not all employees will pose a direct threat if not vaccinated.

If the employer cannot show direct threat, there are two other circumstances disability-related questions may be asked: (1) if the administration is voluntary; and (2) if a third party that the employer does not contract with administers the vaccine. On the other hand, the EEOC explicitly states that asking an employee to show proof of vaccination is not a disability-related inquiry. In the event not all members of a workforce would constitute a direct threat if not vaccinated, employers may elect to simply require proof of vaccination, rather than facilitating vaccination. (Keep in mind, however, that subsequent questions, such as why the employee did not receive the vaccination, etc., may be medical inquiries and would be subject to the ADA requirement that they be job-related and consistent with business necessity.)

Given the ever-changing nature of our response to COVID-19, we anticipate that there will be more guidance in the future as we learn more about the timeline for vaccination rollouts and whether there are other concerns that implicate employers. For example, it is currently unclear whether or when employees who have had COVID-19 and still have its antibodies will need to get a vaccine. Tune in for more to come!

This article was prepared by Lloyd Gosselink’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Emily Linn. If you would like more information, please contact Sheila ( or 512.970.5815), Sarah ( or 512.221.6585), or Emily ( or 214.755.9433).

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